On October 20, 2023, the Plenum of the Constitutional Court adopted a decision to interpret parts 2-3.4 and 2-4 of Article 7 of the Labor Code of the Republic of Azerbaijan in connection with parts III and IV of Article 35 of the Constitution of the Republic of Azerbaijan.
In the factual circumstances of the case, it is noted that the particular LLC (hereinafter referred to as “LLC”) was found guilty of committing an administrative offense and an administrative fine was imposed on it, because it engaged an employee to perform work as a courier without concluding an employment contract. LLC filed an appeal against that decision and stated that LLC, as a subject of civil law, has the right to enter into civil relations with other persons for the provision of postal communication services on the basis of freedom of will and freedom of contract, and the fine imposed on it is unfair.
The plenum of the Constitutional Court clarified the issue and stated that a person can formalize his/her labor activity with a labor or civil contract based on his free choice. In addition to this, the Constitutional Court noted that, in spite of Article 2.3 of the Labor Code, which stipulates cases when the conclusion of the employment contract is mandatory, including the case when the relations between parties arise in connection to the performance of the works related to the main activity field of the employer, sometimes despite the requirement of the Code, such relations may be formalized by a civil contract due to their nature (for example, because they are one-time or irregular). Therefore, it is recommended to the courts that while determining whether the relations between the parties are employment relations based on the cases indicated in the 2-3 of Article 7 of the Labor Code, including the case when such relations are related to the performance of works (services) in connection to the employer's main field of activity, to examine the nature and true essence of those relations, the factual circumstances of the case and to make a decision based on this.
